Writing for the Appellate Division’s Third Department, Justice E. Michael Kavanagh has ruled that the Albany County Surrogate erroneously approved an attorney’s fee of $58,000 in the Estate of Iris H. Benware reported at  927N.Y.S.2d 173. Although the Surrogate has found the fee to be reasonable, the Appellate Division noted that the amount exceeded the amount agreed to by the parties in the retainer agreement. The Court further observed that there were "no extenuating circumstances in providing legal services to the estate"

Apparently, the parties had agreed to pay their lawyer a fee equaling 5% of the estate and a co-executor objected to the fee being in excess of that amount. There was no further agreement with counsel providing for additional legal fees . In his application for the additional fees, counsel failed to claim that he had consulted with the executors or sought their approval prior to providing additional legal services to the estate — and failed to identify those services which might have justified the additional fees.

It is important to know that, in all estate matters, the Surrogate approves the legal fees to be charged and may determine their reasonableness. In this case, however, when one of the parties disagreed with the Surrogate, the matter was properly taken to the appellate court where four appellate justices could further review the reasonableness of the fee.